France, ‘cradle of liberty’, struggles to balance anti-terrorism law and rights

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Eglantine Staunton does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

The French National Assembly has voted through measures that would grant sweeping surveillance powers including wiretaps and secret cameras. The measures are part of counter-terrorism legislation hurried through parliament in the wake of the attacks on Charlie Hebdo magazine in January that left 17 dead.

If approved by the Senate, the legislation will allow the use of wiretaps, secret cameras or other surveillance measures without a warrant from a judge. The legislation also allows security agencies to install scanning devices at telecoms firms’ premises, to allow for untargeted, sweeping surveillance.

‘We are at war against terrorism’

The French president, François Hollande, and his executive have prioritised the fight against terrorism. They surprised many in January 2013 when they sent French troops to Mali to provide support against “terrorist elements” and, earlier this year, when they deployed the aircraft carrier Charles de Gaulle to the Gulf to fight the Islamic State.

The executive is concerned by the radicalisation and involvement in terrorist groups of French citizens and residents. The Ministry of Interior has flagged 1,422 persons as being involved in the Syrian conflict alone, including 413 fighting in combat zones.

Two counter-terrorism laws have already been passed by the French parliament in 2014 and anti-terror measures worth 940m euros have been introduced since January. These include a “stop jihadism” website, training for judicial services to identify those who might be under the influence of terrorist networks, reinforced security controls such as plan vigipirate (similar to the UK threat level) and increased recruitment to the secret services, police and army.

But the passing of this law by the National Assembly has taken the war against terrorism in a new direction. In February 2015, a decree allowed authorities to block pro-terrorism websites without judicial oversight. The new legislation extends this self-authorisation to surveillance measures such as phone-tapping. It will also allow for constant collection of internet metadata and information to identify threats and persons of interest automatically – as Edward Snowden’s leaked documents revealed to be common in the US and UK. The only oversight will be provided by a panel of magistrates, politicians and communications experts – where deemed necessary.

France fears that it may end up with a surveillance culture, as in Britain.oogiboig, CC BY-NC-SA

Human rights in the face of terror

The threat of terrorism presents a challenge for Hollande as he must find a balance between effective counter-terrorist measures and France’s values – particularly its commitment to human rights. France is not the first to face this difficulty, but the French people have learnt from the Patriot Act and others enacted in the US, and are wary of how far steps taken against terrorism in their own country could go.

The idea that France is the birthplace of human rights is deeply embedded. For example, in 1981 Socialist president Mitterrand explained that France was the “champion of the rights of the citizen”, referring to the French as “the sons of the French Revolution”. Likewise, Liberal president Chirac argued in his Memoires that “France is custodian of a vision, of values, of a humanist ideal”.

After the attacks in January, the incumbent French prime minister, Manuel Valls, referred to France as “the spirit of the Enlightenment”. He also said that although “an exceptional situation needs to be responded to with exceptional measures” he would never “infringe on the principles of law and values”.

Checks and balances

Nevertheless, there are concerns the legislation goes too far. NGOs such as Amnesty International and Human Rights Watch, the Mozilla Foundation that creates the Firefox web browser, and ISPs opposed the project. Quadrature du Net, an online rights campaign, declared that it “goes even further than the NSA”. French data protection agency CNIL and the Paris Bar also oppose the legislation – Judge Marc Trévidic condemned the “exorbitant powers” it would give the surveillance agencies. Even the New York Times editorial board has warned of the consequences for the freedom of press.

Legislation brought forward last year that allowed authorities to access internet user data met a similar reaction. And while the Charlie Hebdo shootings might have given more leeway to the government, the French people do not seem willing to compromise their rights in the fight against terrorism. In an informal poll by the newspaper Le Figaro, only 64% agreed that freedoms should be limited to fight terrorism – less than expected, given the paper’s conservative readership and the fact that the poll took place the week after the January attacks.

A group of 75 MPs have declared that if the legislation is passed, they will call upon the Constitutional Council to review the constitutionality of the law. So Hollande and his government face a difficult puzzle: how to fight terrorism without compromising elements of France’s identity. This will inevitably mean addressing concerns over the legislation’s extent and the lack of judicial overview – as the bill now heads to the Senate, it remains to be seen if it stays unchanged by the upper house.